Jurisdiction Non-EU

Common Law Rules

The rules set out in other chapters regarding EU disputes apply only when the conditions in them are satisfied.  There is generally a dispute between EU-based parties.

Where the EU rules don’t apply the traditional common law rules apply.  These are quite different in that they are more discretionary and less mandatory.

The EU rules do not apply where the defendant is not domiciled in an EU State or where rules do not allot jurisdiction in a particular way. The traditional rules also apply where there are no EU rules do not apply.

When the United Kingdom withdrew from the European Union on 31 January 2020 the existing EU wide legislation cease to apply. It continued until 31 December 2020 and apply to proceedings commenced prior to that date.

The United Kingdom has ratified the Hague choice of court Convention. In other cases jurisdiction over persons who are ordinarily resident or domiciled in the United Kingdom may be subject to the non-EU (common law) rules.

Jurisdiction by Presence

A company with a branch or establishment in Ireland may be sued in respect of the business of that branch in Ireland.  There is an obligation to file branch information with the Companies Office.  See the chapter on branch disclosure.  If the company fails to provide the requisite branch information, it may be sued by posting a claim form to any place of business established by it.

Under the common law rules, the Court has jurisdiction:

• If the person is physically present (although the court may stay (suspend) proceedings on the basis that another court is more appropriate).
• The defendant submits to the jurisdiction.
• One of the court rules bases applies.

Presence & Submission

Outside of the EU rules, a person who is served while in Ireland may be subject to the jurisdiction of Irish courts.  This may simply be on the basis of temporary presence.  If, however, the individual is induced fraudulently to come to Ireland, the claim would be struck out as an abuse of process. If Ireland is not the appropriate jurisdiction, the proceedings may be stayed.

A person may be sued by service of the court claim form while he is physically present in the country.  However, the dispute may have little or no connection with Ireland.  If the particular court is not the appropriate or suitable court, the Court may refuse to hear or stay/ freeze the proceedings.

If the defendant submits to jurisdiction, this is generally sufficient to confer jurisdiction.  Any steps taken to defend the claim on the merits will constitute submission to jurisdiction.

Where a contract contains a clause providing for Irish jurisdiction, this by itself will not be submitted to jurisdiction. If the agreement contains a clause providing for Irish jurisdiction and a method for service, then this may cause him to be deemed to have submitted to the jurisdiction.

If there is no clause regarding process service, it is not a submission.  There may, however, be jurisdiction on the basis of the EU rules or a discretionary basis.

Submission Issues

There are some exceptions to the general principle that the Irish courts will permit litigation served on a person physically present in the  jurisdiction.

It will not apply to

• foreign immovable property (land and buildings)
• an enemy alien may not involve the jurisdiction of the courts
• diplomats are exempt from civil jurisdiction
• at common law penal revenue laws of another state will not be directly or indirectly enforced
• this also applies to public law of a foreign country
• a dispute which would enforce a foreign law contrary to public policy or accepted morality will not be litigated
• sovereign immunity of a foreign state

Traditionally at common law a subject or citizen of  the State was subject to the states courts jurisdiction. However this principle has been eroded and has been rejected.

Challenging Jurisdiction

A person who is  not otherwise subject to the Irish courts may submit himself to jurisdiction by accepting service. This does not apply to an appearance made for the purpose of objection. If the defendant appears to contest jurisdiction, this is not submission.

The same principle applies to submission to the jurisdiction of arbitrator in Ireland. This  also applies to submission to enforcement of the arbitration award by the Irish courts.

A person may appear to proceedings for the purpose of challenging jurisdiction. The entry of appearance must be conditional for this purpose. However he may be taken to waive,  if he  proceeds to take any steps in the action.

The challenge to jurisdiction must be made prior to submission.  Once the defendant has submitted, he cannot change his mind and subsequently apply on the basis that the Court is not the appropriate one.

Permission to Serve Abroad

Anybody within the jurisdiction may be served without the court’s consent. The common law rules allow for the service of claims outside Ireland with the court’s prior consent.

This is in contrast to the EU rules. Once the relevant criteria are satisfied under the EU rules, the court’s consent is not required.

Under the common law rules, there must be a connection between the claim and Ireland.  The Court has significant discretion in granting or refusing consent.

It must be satisfied that Ireland is the proper place in which to bring the claim.  The broad criteria are as follows:

• There must be a serious claim that requires a trial.
• The claim must fall within one of the relevant Court rules (see below).  There must be at least an arguable case that the dispute falls within those rules.
• The Court must be satisfied that Ireland is the appropriate forum for deciding the interests of the parties and of justice.

Appropriate Forum

The question is one of appropriateness with regard to the entire set of circumstances.  This would include the nature of the dispute, the issues involved, local knowledge, availability of witnesses and their evidence and expense.

In an application for permission to serve the process abroad, the burden is on the claimant to establish Ireland as the appropriate forum. The Courts consider where the centre of gravity of the dispute is.

If, for example, a tort claim involves an accident that occurred in Ireland, this is likely to be Ireland. The Court may give permission to proceed even if the dispute is more closely connected with another jurisdiction if it can show that justice would not be done abroad.

The defendant may be entitled to contest jurisdiction and apply to have the service of the process set aside.  This is not the same as a stay of proceedings in the above types of cases.  In the latter case, the burden would remain on the defendant to show that another forum is more appropriate.  In the former case (where served abroad), the burden is on the claimant to show that Ireland is the appropriate forum.

Contract Cases

The Court rules provide for a number of types of cases. The following are the categories of case where the Courts may assume jurisdiction in a claim made in respect of a contract. The assumption of jurisdiction is not automatic.

• A contract made in Ireland. Generally, the contract is where the act of acceptance occurs.  In the case of post, it may be where acceptance is posted.
• Where the contract is made through an agent trading or residing in Ireland. This basis may apply even if the Irish-based agent does not conclude a contract for the foreign-based principal.  It also applies to an agent in Ireland who solicits an order from Irish customers and sends them to the principal abroad, who then enters the contracts.
• Contracts governed by Irish law
• Contracts containing a term conferring Irish Courts with jurisdiction
• An application for a declaration that a contract does not exist where the contract would fall in one of the above criteria if it did exist.

Where the breach of contract occurs in Ireland, a court may assume jurisdiction.  A breach includes where the obligation is not performed where it was required to be performed in Ireland or if defective performance happened in Ireland.  Similarly, if the contract is repudiated, this may have happened in Ireland and be a basis.

Civil Wrongs & Restitution

In the case of claims on tort /civil wrongs, permission may be. anted on the basis that the loss or damage was sustained within Ireland or where it resulted from an act committed within Ireland.

The Court may assume jurisdiction where significant damage has occurred in Ireland and substantial and vexatious acts have been committed in Ireland where the wrongful act and damage are suffered in different jurisdictions.

Where damage results in more than one jurisdiction, for example, with defamation, the person may claim in Ireland only for the damage suffered in Ireland.

In a claim based on Restitution, jurisdiction may be assumed where the act arose within Ireland.  Where restitution is founded on the discharge of a contract, the above-mentioned provision (void contract) would be likely to apply.

Multiple & Necessary Parties

Where there are multiple defendants, permission may be granted to serve process outside the jurisdiction.  If there is a defendant within the jurisdiction, there is a claim which is reasonable to be tried within Ireland, and it is necessary to serve on a person abroad who is a necessary and proper party to the claim, the second defendant may be served even though the case would not otherwise come within the rules.

Each defendant is regarded as necessary and proper when the claims against them arise out of the same series of transactions or involve common questions of factual disputes. If a claim against the first defendant is only brought as a pretext to get the second foreign defendant before an Irish Court, the Court should refuse permission.

Where third-party proceedings against a third party who is a necessary and proper party to the claim, similar provisions apply. The Court exercises care, caution, and practical considerations in these types of cases.

Other Basis of Jurisdiction

There are many other bases on which an Irish Court may assume jurisdiction, including:

• Claims in relation to property in the jurisdiction.
• Claims based against a person domiciled in Ireland.
• Claims to enforce foreign judgments.
• Claims in respect of taxes.
• Claims under various legislation.